Attorneys critical of state bar's ethics draft

The Virginia State Bar’s proposed ethics opinion that lawyers should refrain from having sexual relationships with clients does not go far enough – or it goes too far, according to attorneys commenting on the draft document.

Four lawyers from different regions of the state submitted written comments suggesting changes to the draft opinion, which the State Bar’s Legal Ethics Committee will consider at its next meeting Dec. 9. The window for public comment closed Nov. 30.

“It is apparent that a sexual relationship with a client during the course of representation can seriously harm the client’s interests,” the draft opinion concludes. “A lawyer should refrain from entering into a sexual relationship with a client as client consent will rarely be sufficient to eliminate any potential ethical violation.”

That language is not strong enough for Robert Spiller, a Penn Laird, Va., attorney who began his comments by bluntly stating, “I oppose the proposed [legal ethics opinion.]”

“I believe that clients, the public, the Bar and the courts would be better served if the Virginia State Bar publicly opined that it would be an ethical violation for a Virginia lawyer to engage in sexual relationships with clients, whether the sex or the representation comes first,” Spiller wrote.

His most “urgent” critique stemmed from a sentence that, he believes, “will invite sarcastic mockery of the very limited strength of the proposed opinion.”

The sentence in question states that a lawyer who leverages his position to coerce sexual favors from a client “may be found to have violated” the Bar’s prohibition against any acts that reflect poorly on the lawyer’s fitness to practice law.

For a lay reader, Spiller pointed out, this language “signals that lawyers might not abhor and might not punish such conduct.” Calling for the sentence to be deleted, Spiller concluded that the draft opinion “ought to be firmed up to reassure clients and the public that the Bar will not tolerate the mixing of sexual and attorney-client relationships.”

On the other side of the spectrum was Robert Freed, a Richmond attorney and former chair of the State Bar’s Disciplinary Board. Freed wrote that he was “very concerned” that the language of the opinion shifts the burden onto the attorney to prove that his conduct is ethical.

The draft opinion states that if there is a problem during the course of legal representation, a lawyer who has a consensual sexual relationship with a client “would be called upon to show that the lawyer’s conduct did not violate any of the [. . .] ethical concerns, in spite of the consent.”

Likening this to “having to prove that you did not commit a crime,” Freed argued, “This is a substantial, fundamental shift from our long-standing standard that the Virginia State Bar is required to prove misconduct by clear and convincing evidence.”

Leonard Heath, a Newport News attorney, argued that the opinion should not go so far as to prevent an attorney from representing a client with whom the sexual relationship predates the representation, such as one spouse representing another.

Roderick Williams, attorney for the county of Frederick and chairman of the Local Government Attorneys of Virginia Ethics Committee, recommended tweaks to strengthen the language of the opinion.

State Bar officials took up the issue of attorney-client sex after the Bristol Herald Courier in March published a series of articles examining the disciplinary case against a former Southwest Virginia Legal Aid Society attorney accused of sexually exploiting his emotionally vulnerable, indigent clients.

The articles noted that the rules of the Virginia State Bar did not expressly prohibit a lawyer from having a sexual liaison with a client – a prohibition advocated by the American Bar Association, and adopted by 27 state bars across the country.

The State Bar in August decided against adopting such a rule, opting instead to draft a legal ethics opinion to educate the public and the profession.

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